Friday, September 02, 2016

What Should Fair Notice Require in Criminal Statutes?

by Michael Dorf
Last week, I wrote about a Missouri Supreme Court opinion that construed that state's theft statute in a way that resulted in most instances of stealing being classified as misdemeanors rather than felonies. I criticized the opinion as an instance of "textualism run amok." In addition to some comments agreeing with my analysis, there were three lines of criticism.

One group of critics said that the Missouri Supreme Court ruling did not discredit textualism because it was an instance of bad textualism. Any approach to statutory construction can be used badly, the argument goes, and so it was unfair of me to hang this particular albatross around the neck of textualism. My post anticipated this response by noting that some textualists allow for less literal readings of statutes when literal readings produce terrible results, but that even so, the gravitational pull of textualism will make this option less readily available than it ought to be.

A second group of critics disagreed with my particular alternative reading of the relevant Missouri statute, with some of them proposing their own alternatives. Perhaps these critics are right. I gave very little thought to my alternative, because my aim was to criticize the Missouri Supreme Court for not even trying to come up with an alternative reading that might make sense of the text.

Here I want to focus on a point made by a third group of critics. They said that the Missouri Supreme Court was right because the case involved a criminal law, and the requirement of fair notice (which is an element of due process) forbids creative statutory construction to the detriment of a criminal defendant. In this view, even if it might be appropriate to depart from the literal text to achieve a sensible result in a civil context, where the possible result is the defendant's loss of liberty through the criminal law, a more rigid textualism should prevail. Indeed, under the so-called rule of lenity, ambiguity should be construed in favor of the defendant; hence, if the statute on its face favors the defendant, then certainly it should not be construed against him.

I want to concede that this third group of critics has a point, insofar as they are characterizing existing doctrine. But I think that is largely a cost of the rule of law, rather than a feature to be celebrated--at least with respect to criminal acts that are obviously wrongful, like theft of high-value items.

Let's grant that no one should be held criminally liable for acts that he was not on notice were criminal. And as a corollary, let's grant that if there is notice only that an act is a misdemeanor, then it violates the requirement of fair notice to punish someone for a felony if she commits that act. Conceding all of that--and conceding, at least for the sake of argument, that the Missouri law did not give clear notice that stealing of firearms was a felony--it still strikes me as a cost of the rule of law that the defendant got off.

Why? For the simple reason that knowledge of the law is a fiction. The law does not, after all, require actual notice. Instead, it presumes that people know the law. The adage, stated in the contrapositive, is that ignorance of the law is no excuse. In the Missouri case, it is extremely unlikely that the defendant committed her crime because she thought that it was only a misdemeanor rather than a felony. It's extremely unlikely that she knew what the law defining stealing said. Do you know the details of the definition in your state? I don't in mine.

Nonetheless, let's concede that a defendant who timely raises an objection that the law doesn't clearly define her alleged conduct as criminal (or as a serious crime) should be able to succeed in that objection. How far must the fiction that everyone knows the law be pushed? Let me suggest a couple of limitations.

First, I think the Missouri Supreme Court could have been creative with respect to prospective remedy. Case law states that a law that is unclear on its face may be made sufficiently clear to satisfy notice requirements through a judicial construction--at least prospectively. Accordingly, the Missouri Supreme Court could have said that it was giving the defendant the benefit of its construction of the law, but that henceforth it would construe the law broadly. The court might even have said that it would accelerate the coming into force of the new--quite clear--version of the law, currently scheduled to come into force on January 1, 2017, making it immediately operative.

If that sounds unprecedented, consider the 1985 judgment of the Supreme Court of Canada in the Manitoba Language Rights Case. The 1870 Manitoba Act required that all laws be published in French as well as English. However, they were only published in English. The Court accordingly held that all of Manitoba's laws were invalid. But rather than plunge Manitoba into a state of anarchy, the Court gave the province a grace period to translate and publish its laws. During the grace period, the old laws (just in English) remained in effect. I am proposing that the Missouri Supreme Court could have accomplished something similar by accelerating the effective date of the amended criminal law.

Now it could be objected that there is a difference between leaving an old law on the books and putting a new one on. But note that both involve judicial creativity. And because in my proposal for Missouri, the new law only applies to conduct occurring after the court's decision, there is no notice problem.

Second, I think that another way to cabin the damage from recognizing that clearly harmful conduct falls into a gap in the criminal law is to limit its availability based on waiver. Earlier this year, in Welch v. United States, the SCOTUS ruled that a "new rule" that a statute fails to give fair notice (in that case because it was vague) is substantive, and therefore can be used to challenge a criminal conviction in a collateral proceeding. For readers who are not fed courts nerds, the background idea is that when the Supreme Court announces a new rule it is typically not available as the basis for habeas corpus relief; however, there is an exception for new rules that make the underlying conduct uncriminalizable. Recently, the Court has somewhat expanded this exception. Thus, insofar as these principles apply in state courts (and Welch was a case involving federal habeas for a federal prisoner, so its applicability is not entirely clear), one might think that a rule like the one announced by the Missouri Supreme Court would also be the basis for relief for people whose convictions have already become final.

But I think that such a conclusion would over-read Welch (even assuming it applies in state court). Welch and related cases say that the newness of the rule is not a bar to asserting it in collateral proceedings. However, it does not speak to other possible limits. One such limit is the ordinary requirement that a defendant raise an objection at trial or else be deemed to have waived it. Now there are quite a few circumstances in which such "procedural defaults" can act harshly. But I don't think that failure to object to a lack of fair notice is one of them. A defendant who didn't know that what she did was a crime--or didn't know that it was a serious crime--is likely to tell that to her lawyer, who, in turn, is likely to raise the absence of fair notice as grounds for quashing the indictment if there is a colorable argument for that result. Thus, where a defendant did not raise such a claim, it is fair to assume that's because the defendant was not relying on the terms of the statute in attempting to conform her conduct to law. And while that's true in nearly every case--because of the fictive quality of notice--it seems reasonable for the legal system to cut its losses by not engaging the fiction for old cases where the social cost of freeing people who committed clearly bad acts is high.

Finally, I want to be clear that I mean the foregoing discussion of non-retroactivity to apply only to crimes (such as most stealing) that we can clearly classify as malum in se, and not to acts that are not clearly wrongful (such as possessing marijuana) but are nonetheless illegal. I realize that there are people who dispute the distinction between malum in se and malum prohibitum. If you count yourself among those people, then you may have good reason to disagree with my proposal with respect to non-retroactivity.

7 comments:

Mike: I don't think waiver is going to get you very far, because it'd almost certainly be ineffective assistance of counsel to fail to object that the deft's conduct wasn't a felony under the statute. Any competent counsel would read the statute under which the deft was charged. And any competent English speaker would see that the statute didn't literally cover his conduct. Now, regardless of what one thinks judges should do about textualism when the literal reading is implausible/absurd/etc., surely we all agree that defense counsel must argue for the literal reading in these circumstances.

Also, incidentally, Welch's rule that vagueness rules are substantive/retroactive does apply in state court, courtesy of the (preposterous) holding in Montgomery v. LA that Teague's "substantive" exception to non-retroactivity is constitutionally required.

Hash: Thanks for the comment. I think it probably OUGHT to count as IAC to fail to object that the deft's conduct wasn't covered, but it appears that a great many--perhaps hundreds--of lawyers didn't object. Insofar as Strickland defines IAC by reference to a community standard, this probably doesn't count as IAC.

Regarding application in state court, the reason I hesitated was because, as I noted in the first post, I'm not sure that Montgomery itself applies in a case where the argument is that the statute doesn't cover the conduct--at least if that's just a state law claim. I suppose if I were defense counsel in one of these cases I'd say that it's necessarily a federal constitutional violation to convict someone based on a reading of a state law that doesn't give fair notice.

I can't believe that I find myself in the position of advocating broader readings of Strickland and Montgomery than you (since I disagree with both of those opinions as a matter of first principles), but here goes:

As to Strickland, "prevailing norms of practice" in the community are "only guides" (p.688). Absent any reasonable excuse for the hundreds of lawyers that missed this -- and i'm hard-pressed to think of what that excuse could be, since there's no conceivable justification for either failing to read the statute of conviction or lacking a middle-school-level reading ability -- this seems like one of the rare cases where the norm in the community is Strickland-level incompetence.

As to Montgomery, while you're right that there's some language in that opinion that suggests it is limited to substantive "constitutional" rules, there's other language that reaches *any* substantive Teague exception, on the theory that those all involve situations where the state lacked power to punish. (pp. 729-30) And, under Bousley, the fact that the statute of conviction doesn't cover the conviction counts as "substantive" for that very reason. While Bousley also involved a federal statute, I'm pretty sure the Court would reach the same result for a state statute, on the theory that it's necessarily a DP violation under Jackson (insufficency of evidence) if the state statute doesn't cover the conduct.

Thanks for addressing the issue of fair notice, Mike. Your comments are very helpful. But I am not convinced. I need to think more about the Welch issues, but I think I can speak to your prospective remedy proposal.

First, I agree that, in this case, treating what should be treated as a felony as a misdemeanor has, as you put it, social costs. The issue is whether those social costs (presumably, in the way of deterrence failure or the failure to punish existing defendants commensurately with the gravity of the offense) are significant enough to outweigh the value of notice.

1. I don't think of legal norms as hostage to a utilitarian or consequentialist calculus. Some norms are too important to be placed on the balance (unless, of course, the situation is really dire).2. You seem to think that the value of notice should be discounted by the fact that it is fictive, in the sense that very few people bother to inform themselves about what is legally required of them (or, at least, of the penalties they would face for breaking this or that law). But the notice requirement is not that people should not be held to account for legal infractions they don't *actually* know about. As you point out, too few people know the law. So such a principle would immediately make the law toothless. Instead, the notice requirement is that people should not be held to account for legal infractions that they *couldn't* (without a level of effort that it would be unreasonable to demand of them) know about.3. Now, how important is the notice requirement, so understood? Answer: very very important. This is not because, as Justice Scalia once wrote, failure to adhere to it violates *democratic* principles. It's because notice is what separates the rule of law from (Kafkaesque) tyranny. Without notice, there is nothing to stop the rule-making branch(es) from essentially making things up when they feel that it's a good idea. "Sure, we the legislature know that the law *says* that self-defense is a justification for homicide. But what we *meant* when we wrote it, without saying so, is that self-defense can't be a justification when the aggressor is a plainclothed police officer. Because, you know, we want to protect police officers."4. So, deviations from a value as fundamental and as important as notice must be based on reasons of extraordinary significance. The results of keeping to notice would need to be catastrophic to justify deviation. In part, this is because of the fundamental unfairness of holding people responsible for what they could not know they are prohibited from doing. In part, this is because once you deviate a little from notice, there is no principled place to stop: the slippery slope beckons.5. The social costs in this particular case simply do not rise to the kind of level that would justify deviation from notice. It's not like society is in grave danger just because something that used to be treated as a felony (regarding violations of property-rights) is treated as a misdemeanor.

So what of the prospective remedy? Could a court, seeing the costs of notice, simply rule that a law should be construed broadly in the future, while giving the defendant in this particular case a break based on the rule of lenity? There are two cases here, but I'm afraid that the answer is NO on each. The first case is when the law is vague or ambiguous. But, it seems to me, unclarity should always favor the criminal defendant. Among other things, we want there to be strong incentives in the legal culture to write laws clearly and precisely. If courts can construe unclear laws broadly, that incentive will disappear, and part of the whole point of the law, which is to provide clear guidance, will be lost. The second case is when the law is clear (I believe this is the case here). And when the law is clear, a court has no business construing it as meaning anything other than what it says. Otherwise, it arrogates to itself power that it shouldn't have, and turns the rule of the law into the rule of judges. Indirect democracy turns into kritocracy.

Could the difference between *malum in se* and *malum prohibitum* help you here? I don't think so. Even if there is such a difference, we can't assume that people already know (or should know) whether this or that form of conduct counts as malum in se, or what level of malum it represents. If I steal $500 to feed my very hungry kids, or to prevent them from freezing in winter, or to pay for needed medications for my kids, is that a malum in se? Even if it is, should it be treated as harshly as as stealing $500 to pay for a new pair of Jimmy Choos? How should I know? Isn't that why we have statutes? To provide guidance on such matters?

The general rule cited on grounds of lenient application etc. makes sense but as applied it to me is a hard sell. This is not like the "fish" case where it being a crime at all in the context of the statute is at issue.

It is a question of something obviously a crime by some quirk (no actual REASON for it "really" being so was cited by the court, so I guess it is kind of a sort of an exclusionary rule for deterrence in other cases) provided a lesser punishment. And, a reasonable (the most reasonable? one or more people thought this) reading of the statute would avoid what otherwise seems wrong, but we are just "forced" into it.

Now, perhaps, the overall rule in place brings this case with it. I'm not really convinced. Also, it isn't from my reading what the court relied upon. Maybe, it factored in? It would have helped if they cited it though. Anyway, the discussion is appreciated.

[Also, that slavery case -- which seems somewhat different but anyways -- was quite interesting. Would like to know the cite, if anyone has it.]